Passed into law with overwhelming bipartisan support in 1973, the Endangered Species Act (ESA) aspires to prevent extinction, recover imperiled plants and animals, and protect the ecosystems on which they depend.
Since then, the law has helped prevent the extinction of our nation's wildlife treasures, including beloved symbols of America such as the bald eagle, the Florida manatee and the California condor. Over 95 percent of species listed under the Act are still with us today and hundreds are on the path to recovery, which is an astonishing success rate.
This success is critically important in light of the impending extinction crisis, which affects not just wildlife but also humanity.
The Endangered Species Act provides added benefits to people by maintaining healthy natural systems that provide us with clean air and water, food, medicines and other products that we all need to live healthy lives. We owe it to our children and grandchildren to be good stewards of the environment and leave behind a legacy of protecting endangered species and the special places they call home.
Implementing the Act
The Endangered Species Act applies to everyone, but two federal agencies, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), are responsible for the Act’s implementation. These agencies are staffed with scientists and conservationists who are experts in what species need to survive and thrive. Their expertise guides ESA protections in several ways:
For a species to gain protection under the ESA, it first must be listed by regulation as either “threatened”—a species that is likely to become endangered in the foreseeable future—or “endangered”—a species that is now in danger of extinction. A proposal to list a species can arise from a petition submitted by the public or state agencies, or listing may be initiated by the Services.
When FWS or NMFS lists a species, it generally must also designate “critical habitat,” which consists of specific areas with the physical and biological features essential for the species’ conservation. Critical habitat may be occupied or unoccupied at the time of listing, which is essential because so many species have already been lost from significant portions of their range.
In addition to critical habitat designation, listing typically also requires the development of a plan that spells out the research and management actions necessary for recovery. Recovery plans specify which actions are needed, and where; the expected cost of recovery; and the expected timeline of recovery. This science-driven approach is the best way to ensure species are put on the path to long-term persistence and recovery.
Each federal agency is required to use their authorities to conserve listed species. One way they do that is by ensuring that agency actions do not jeopardize the continued existence of these species or adversely modify or destroy their critical habitat. If a federal agency (the “action agency”) proposes to authorize, fund or carry out an action that “may affect” a listed species or its critical habitat, it must consult with FWS/NMFS. (Activities on private land with no federal involvement do not require consultation.) After consultation, the Service issues a “biological opinion” stating whether or not the proposed action is likely to result in jeopardy or adverse modification. If the Service finds either impact likely to occur, it may propose modifications to the action to avoid violating the ESA. While the action agency can disagree and reject the Service’s conclusion or recommendations, it does so at its own peril since the courts tend to defer to the wildlife expertise of the Service.
Congress imposed strict statutory prohibitions on the “take” of endangered species but granted the secretaries of Interior and Commerce discretionary authority to apply these prohibitions to threatened species. “Take” includes activities such as harassing, harming and killing. “Harm” for a listed species is further defined by regulation to include significant habitat modification. While the ESA can shield listed species from significant harm, it does not directly mandate or compel private citizens to take positive conservation actions on behalf of these species. Non-federal landowners and managers can obtain a permit to “take” a listed species if that take is incidental to some other lawful activity, such as plowing a field, building a shopping mall, or issuing building permits. These incidental take permits are issued in conjunction with three different types of agreements:
- Habitat Conservation Plans, which are designed to reconcile land use or development with listed species conservation;
- Candidate Conservation Agreements with Assurances, which shield landowners who voluntarily manage their lands for the benefit of candidate species from additional land-use restrictions if the species is subsequently listed; and
- Safe Harbor Agreements, for which landowners voluntarily agree to enhance the habitat of listed species on their properties and, in return, receive assurance they will not be required to take any additional conservation measures other than those to which they have already agreed.
One goal of the ESA is to “recover” species to the point they no longer require the Act’s protections and can be delisted. The ESA has been extremely successful in preventing extinctions and has been the ultimate stopgap measure for saving species in cases where the management policies of other federal agencies have contributed to the decline of the species. The status of many species is improving, but decades of underfunding have meant too many species continue are just holding on. Ultimately, properly funding the Endangered Species Act will ensure that it can live up to its full potential for saving species.